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Defense counsel assails bill requiring alleged violent criminals’ detention

Steve Lash//February 23, 2023

Defense counsel assails bill requiring alleged violent criminals’ detention

By Steve Lash

//February 23, 2023

A Republican-backed bill to prevent judges from releasing before trial certain defendants charged with a violent crime drew criticism Thursday from defense attorneys who called the mandatory pretrial detention unconstitutional.

Under current law, judges have broad discretion to release defendants before trial, including those charged with a violent crime.

House Bill 736 would remove that judicial discretion by placing judges on a par with district court commissioners, who are barred from releasing defendants charged with a violent crime if they are facing another violent crime charge or have ever been convicted of a violent crime.

Under the bill, judges who review commissioners’ decisions to detain criminal defendants would be barred from releasing defendants already charged with a violent offense or have been convicted of a violent crime in the prior 10 years.

House Minority Leader Jason C. Buckel, the bill’s chief sponsor, said making pretrial detention mandatory rather than discretionary in these instances is necessary to protect the public from violent crime by released defendants.

“Serious violent criminal offenders are a massive problem in our society and we need to deal with them in a more concrete and more focused fashion,” Buckel, R-Allegany, told the House Judiciary Committee.

“These are the people who are plaguing not simply our urban areas, but many of our suburban areas and, frankly, some of our rural and exurban areas,” Buckel said. “We keep letting them out over and over and over and over again, and they’re killing and hurting people in our communities, and we should be serious as legislators about doing everything we can to put these types of folks in jail and keep them there while their cases are being adjudicated.”

But Assistant Maryland Public Defender Elise Desiderio said the bill mandating pretrial detention would deny defendants their right to due process by creating an irrebuttable presumption of dangerousness despite them not having been convicted of the crime charged.

“This bill would prevent affected people from arguing for their liberty at all even though they are still presumed innocent,” Desiderio told the Judiciary Committee. “This bill creates a category of people who are robbed of any ability to argue for their liberty based solely on unadjudicated charges or their past.”

Michael Beach, the district public defender for Montgomery County, testified and stated in written testimony that the legislation is patently unconstitutional and “could result in the illegal confinement of countless presumptively innocent defendants until such time as the Maryland appellate courts strike it down.”

“Due process affords everyone in our country and state an opportunity to argue for their freedom when they are accused of a crime,” Beach wrote. “This bill rips away that constitutional right from a whole class of people, including some who may have no prior criminal convictions.”

The Maryland Judiciary did not testify at Thursday’s hearing but submitted written testimony in opposition to the bill when it was introduced last year. That 2022 measure died without a vote in the House committee.

“The Judiciary traditionally opposes legislation that includes mandatory provisions,” the Judiciary wrote.

“The Judiciary believes it is important for judges and judicial officers to weigh the facts and circumstances for each individual case,” the Judiciary added. “Recognizing that lawmakers are responsible for enacting penalties for crimes, judges and judicial officers are mindful of various mitigating factors in crafting a sentence that most appropriately fits the individual defendant and the crime. This discretion should remain.”


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